J-S36043-21

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

GARY RICHARD HORNING JR.,

 Appellant

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 

No. 709 EDA 2021

Appeal from the Judgment of Sentence Entered March 8, 2021 

in the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0001902-2019

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

GARY RICHARD HORNING JR.,

 Appellant

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 

No. 710 EDA 2021

Appeal from the Judgment of Sentence Entered March 8, 2021 

in the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0002714-2019

BEFORE: LAZARUS, J., KING, J., AND COLINS, J.*:

MEMORANDUM BY COLINS, J.: FILED JANUARY 11, 2022

Appellant, Gary Richard Horning, Jr., appeals from the judgments of 

sentence entered on March 8, 2021, imposed upon revocation of his parole. 

With this appeal, Appellant’s counsel has filed an application to withdraw as 
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counsel and an Anders brief.1, 2 Upon review, we affirm Appellant’s 

judgments of sentence and grant counsel’s application to withdraw.

The trial court set forth the factual procedural history as follows:

Appellant entered guilty pleas in two separate incidents. [At 

docket] 1902-2019, Appellant pled guilty to prohibitive offensive 

weapon1 and resisting arrest2 which involved his possession of an 

electronic incapacitation device which was discovered after the 

police responded to a domestic incident involving his ex-girlfriend 

at a local delicatessen. [At docket] 2714-2019, he pled guilty to 

resisting arrest in a second incident at the same delicatessen 

which occurred less than two months later. On both occasions, 

alcohol was a factor in Appellant’s behavior.

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1 18 Pa.C.S. § 908.

2 18 Pa.C.S. § 5104.

On August 9, 2019, Appellant received sentences in both 

cases of not less than four months nor more than 23 months in 

Lehigh County Jail. He was also ordered to undergo drug and 

alcohol testing and enroll in an alcohol treatment program.... Each 

sentence was ordered to run concurrently with each other. He was 

paroled effective December 16, 2019.

On October 18, 2020, ten months later, Appellant was 

charged with offenses including strangulation, terroristic threats, 

unlawful restraint, and simple assault.5 These offenses, which 

involved domestic violence, resulted in a guilty plea to 

strangulation and a sentence of not less than one year nor more 

than two years in a state correctional institution.

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5 See Lehigh County No. CR-3319-2020.

1 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).

2 On May 13, 2021, this Court consolidated the appeals sua sponte.
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A parole violation detainer was filed after Appellant’s arrest, 

and a parole violation hearing was held after his conviction on the 

strangulation charge. The parole violation also included failing to 

report for drug testing seventeen times, testing positive for 

methamphetamine, and being unsuccessfully discharged from 

treatment. Appellant conceded that he violated the conditions of 

his parole, and he was remanded to serve the balance of his 

sentences. The original charges were ordered to run concurrently 

with each other, but consecutively to the new conviction. He was 

also ordered to serve his sentence in a state correctional 

institution, which was the same placement as his sentence for the 

strangulation offense.

Trial Court Opinion, 5/17/21, at 1-3 (party designation altered; duplicate 

numbers and some footnotes omitted). On April 5, 2021, the trial court denied 

Appellant’s post-sentence motions.

3 This timely filed appeal followed. Both 

Appellant and the trial court complied with Pa.R.A.P. 1925.4

In this Court, counsel filed an Anders brief and application to withdraw 

as counsel in this appeal. In his Anders brief, counsel identifies the following 

issues:

A. Whether the lower court abused its sentencing discretion when, 

after the defendant admitted to violating his parole sentence 

through the commission of a new offense, and the court 

sentenced him to a term of imprisonment in a state correctional 

institution for each case and ran them consecutive to the new 

sentence?

3 An identical motion was filed at each docket.

4 At Docket 1902-2019, a concise statement of errors or statement in lieu of 

a concise statement indicating counsel intended to file an Anders brief does 

not appear in the certified record transmitted to this Court. See Pa.R.A.P. 

1925(b), (c)(4). However, the trial court opinion, which addressed both 

appeals, indicated that Appellant had timely filed a concise statement and 

raised the same issue on appeal in both cases. See Trial Court Opinion, 

5/17/21, at 3.
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B. May appointed counsel be permitted to withdraw after a 

conscientious review of the issues and the facts pursuant to the 

Ander’s [sic] case?

Anders Brief at 4 (suggested answers omitted). 

Before this Court can consider the merits of these appeals, we must first 

determine whether appellate counsel has satisfied all of the requirements that 

court-appointed counsel must meet before leave to withdraw may be granted.

Commonwealth v. Dempster, 187 A.3d 266, 270 (Pa. Super. 2018) (en

banc); Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) 

(en banc).

To withdraw from representing a convicted defendant on direct appeal 

on the basis that the appeal is frivolous, counsel must (1) petition the court 

for leave to withdraw stating that he has made a conscientious examination 

of the record and has determined that the appeal would be frivolous; (2) file 

a sufficient Anders brief; and (3) provide a copy of the Anders brief to the 

defendant and advise the defendant of his right to retain new counsel or 

proceed pro se and to raise any additional points that he deems worthy of the 

court’s attention. Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 183 

(Pa. Super. 2016); Goodwin, 928 A.2d at 290. An Anders brief must comply 

with all of the following requirements:

[T]he Anders brief ... must (1) provide a summary of the 

procedural history and facts, with citations to the record; (2) refer 

to anything in the record that counsel believes arguably supports 

the appeal; (3) set forth counsel’s conclusion that the appeal is 

frivolous; and (4) state counsel’s reasons for concluding that the 

appeal is frivolous. Counsel should articulate the relevant facts of 
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record, controlling case law, and/or statutes on point that have 

led to the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009); see also

Dempster, 187 A.3d at 270; Commonwealth v. Zeigler, 112 A.3d 656, 660 

(Pa. Super. 2015). If counsel has satisfied the above requirements, it is then 

this Court’s duty to conduct its own review of the record and render an 

independent judgment as to whether the appeal is wholly frivolous.

Dempster, 187 A.3d at 271; Zeigler, 112 A.3d at 660.

In his application to withdraw, counsel states that he has made a 

conscientious examination of the record and determined that there are no 

non-frivolous grounds for the appeal. Counsel provided copies of the Anders

brief and application to withdraw to Appellant and sent a letter to Appellant 

advising him of his right to retain new counsel or proceed pro se on appeal to 

raise any points he deemed worthy of the court’s attention. Counsel’s Anders

brief provides a procedural and factual summary of the case and cites and 

discusses the applicable law on which counsel bases his conclusion that there 

are no non-frivolous issues that he can raise on Appellant’s behalf. Thus, we 

conclude counsel has filed a sufficient Anders brief and adequately complied 

with the procedural requirements for withdrawal as counsel in this appeal.

We therefore proceed to conduct an independent review to ascertain 

whether the appeal is indeed wholly frivolous. This Court first considers the 

issues raised by counsel in the Anders brief and determines whether they are 

in fact frivolous. Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. 
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Super. 2018) (en banc); Dempster, 187 A.3d at 272. In addition, if the Court 

finds all of those issues frivolous, this Court conducts an examination of the 

record to discern if there are any other issues of arguable merit overlooked by 

counsel. Yorgey, 188 A.3d at 1197; Dempster, 187 A.3d at 271-72.

The issue identified in the Anders brief challenges the trial court’s 

sentence as an abuse of discretion when it ordered Appellant to serve his 

original sentences in a state correctional facility consecutive to his newly 

imposed sentence. Anders Brief at 4, 7, 12, 14-15. Specifically, Appellant 

contends that “his need for rehabilitation and treatment would be better 

served by permitting him to finish any term of incarceration in a county facility 

which would allow for treatment and, possibly, work release.” Id. at 7. 

We agree with counsel that this issue is frivolous. Where parole is 

revoked, the court is limited to recommitting the defendant to serve his 

existing sentence and does not have the authority to impose a new 

penalty. Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super. 

2008); Commonwealth v. Galletta, 864 A.2d 532, 538 (Pa. Super. 2004). 

The only question in such a case is whether the court erred in revoking parole 

and recommitting the defendant to confinement. Kalichak, 943 A.2d at 

291; Galletta, 864 A.2d at 539. Thus, “an appeal of a parole revocation is not 

an appeal of the discretionary aspects of sentence.” Kalichak, 943 A.2d at 

291. Conviction of another crime committed while on parole is a sufficient 

basis for revoking parole and recommitting the defendant to serve the 
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remainder of his term of imprisonment. Id. Further, a parole violation 

sentence must be served consecutively to the recommitment of the defendant. 

61 Pa.C.S. § 6138(a)(5).

5 Accord Commonwealth v. Ward, 489 A.2d 809, 

811 (Pa. Super. 1985) (“A parole violator convicted and sentenced to prison 

for another offense must serve his or her ‘back time’ and the new sentence is 

to run consecutive (and not concurrent) to the time remaining on the original 

sentence.”).

No error in revoking parole and recommitting Appellant to confinement 

can be shown here. The record at the hearing established that Appellant 

conceded to violating several conditions of his parole and was convicted of 

new offenses at docket 3319-2020, which he committed while on parole in the 

two instant cases. N.T, 3/8/21 at 4-7. The court merely recommitted 

5

If a new sentence is imposed on the parolee, the service of the 

balance of the term originally imposed by a Pennsylvania court 

shall precede the commencement of the new term imposed in the 

following cases:

(i) If a person is paroled from a State correctional institution 

and the new sentence imposed on the person is to be served 

in the State correctional institution.

(ii) If a person is paroled from a county prison and the new 

sentence imposed upon him is to be served in the same 

county prison.

(iii) In all other cases, the service of the new term for the 

latter crime shall precede commencement of the balance of 

the term originally imposed.

61 Pa.C.S. § 6138(a)(5)(i)-(iii).
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Appellant to serve the balance of his existing sentences. Id. at 9; Amended

Order, 3/9/21.

While appeal of a parole revocation is not an appeal of the discretionary 

aspects of sentence, even if Appellant could assert such a challenge, it would 

be frivolous. A challenge to the discretionary aspects of a sentence is not 

appealable as of right. Dempster, 187 A.3d at 272; Commonwealth v.

Radecki, 180 A.3d 441, 467 (Pa. Super. 2018). Rather, an appeal from the 

discretionary aspects of a sentence is permitted only if this Court determines 

that there is a substantial question that the sentence was not appropriate 

under the Sentencing Code. Radecki, 180 A.3d at 467-48; Zeigler, 112 A.3d 

at 661.

The fact that the court ordered Appellant’s recommitment be served in 

a state correctional facility consecutive to his new sentence at docket 3319-

2020 does not raise a substantial question as to the appropriateness of the 

sentence and thus would not be reviewable by this Court. See Radecki, 180 

A.3d at 468-70; see Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. 

Super. 2015) (en banc) (“A court’s exercise of discretion in imposing a 

sentence concurrently or consecutively does not ordinarily raise a substantial 

question.”); Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013)

(stating that a claim that the sentencing court failed to consider appropriately 

the defendant’s rehabilitative needs does not raise a substantial question); 

Commonwealth v. Brown, 982 A.2d 1017, 1020 (Pa. Super. 2009) (holding 
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that a claim that state incarceration was unreasonable because Brown

committed a non-violent offense and was not confrontational during court 

proceedings did not present a substantial question).

Based on the foregoing, we agree with counsel that the issue raised by 

Appellant is wholly frivolous. In addition, we have reviewed the certified 

record and have discovered no additional non-frivolous issues. Therefore, we 

grant counsel’s application to withdraw and affirm the judgments of sentence.

Judgments of sentence affirmed. Application to withdraw as counsel 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/11/2022